Stridhan of Divorced wife can not be Seized by Income tax Deptt

By | February 8, 2016

Issue

The petitioner and respondent No.2 were earlier married. They have later on opted for divorce. The residential premise of the respondent No.2, ex-husband of the petitioner, came to be searched by the Income Tax Department on or around 25.11.1988. In the above process, certain ornaments and valuables were seized. Such ornaments included gold jewellery and diamond jewellery. The case of the petitioner is that the gold jewellery belongs to her and not her husband. It is her Stridhan.

HELD

Family Court, Mumbai, has also passed an order on 22nd February 2007 in which while granting decree of dissolution of marriage, it is provided that the petitioner would be entitled to all those ornaments lying with the Income Tax Authority, at Ahmedabad. The issue is, therefore, sufficiently clear. Gold ornaments seized by the income tax authorities from the respondent No.2 belonged to the petitioner and she is entitled to receive the same.

 

HIGH COURT OF GUJARAT

Renuka R. Modi

v.

Assistant Commissioner of Income-tax

AKIL KURESHI AND MS. HARSHA DEVANI, JJ.

SPECIAL CIVIL APPLICATION NO. 7537 OF 2012

SEPTEMBER  26, 2012

J.B. Dastoor for the Petitioner. M.R. Bhatt and Mrs. Mauna M. Bhatt for the Respondent.

ORDER

Akil Kureshi, J. – In this petition, the petitioner has prayed for the following substantive relief :

“22(B) Your Lordship be pleased to issue a writ of mandamus or certiorari or any other writ, direction or order in the nature of mandamus or certiorari directing the respondent No.1 to hand over or release the Stridhan gold ornaments seized by the respondents from the custody of the petitioner, to the petitioner.”

2. The petitioner and respondent No.2 were earlier married. They have later on opted for divorce. The residential premise of the respondent No.2, ex-husband of the petitioner, came to be searched by the Income Tax Department on or around 25.11.1988. In the above process, certain ornaments and valuables were seized. Such ornaments included gold jewellery and diamond jewellery. The case of the petitioner is that the gold jewellery belongs to her and not her husband. It is her Stridhan. Even before the assessing authority, the respondent No.2, ex-husband of the petitioner also took similar stand. Such stand was accepted by the Commissioner (Appeals). Such order of the Commissioner (Appeals) has become final. The petitioner, therefore, claims return of such ornaments.

3. The petitioner has also joined her ex-husband and the Income Tax Department as parties in the present petition.

4. We have heard learned counsel Shri Dastoor for the petitioner and learned counsel Shri M. R. Bhatt for the Department for final disposal of the petition. The respondent No.2, ex-husband, though served, has not appeared before us. He has, however, filed an affidavit dated 6-8-2012 in which he has in unequivocal terms accepted that the gold jewellery belongs to the wife (present petitioner) and that he has no objection to such ornaments being returned to her. He has, in fact, stated that he is willing to approach the Income Tax Department by filing such an application/declaration.

5. We further notice that the Family Court, Mumbai, has also passed an order on 22nd February 2007 in which while granting decree of dissolution of marriage, it is provided that the petitioner would be entitled to all those ornaments lying with the Income Tax Authority, at Ahmedabad. The issue is, therefore, sufficiently clear. Gold ornaments seized by the income tax authorities from the respondent No.2 belonged to the petitioner and she is entitled to receive the same. No proceedings are pending due to which, the income tax authorities can even otherwise withhold such ornaments. Ordinarily, it may have been necessary to insist that the respondent No.2 should file a formal application before the income tax authorities in this respect authorizing the Department to handover the ornaments to the wife. However, in the present case, relations between the petitioner and the respondent No.2 have soured and they have taken divorce. Legal proceedings have gone on for a long period of time. The respondent No.2 has also written independently to the Income Tax Department on 23-3-2012 authorizing them to handover such ornaments to the wife (the petitioner herein).

6. Under the circumstances, the petition is disposed of with following directions :

(i) The Income Tax Department shall handover the gold jewellery seized by them from the respondent No.2 during the search operation on 25-11-1988, to the petitioner. This shall be done upon the petitioner approaching the respondent No.1 on 15-11-2012, between 11.00 to 12.00 hours noon. Such authority shall after verifying the identity of the petitioner and making necessary records, handover such ornaments to the petitioner.
(ii) It would be open for the respondent No.2 also to remain present on such date and at such time, as mentioned above, only for the purpose of and if he wishes to verify that, that part of the valuable articles seized by the Income Tax Department which belongs to the petitioner, is being handed over to her, and for no other purpose.
(iii) The petitioner shall serve a copy of this order to the respondent No.2 by Direct Service, latest by 10-10-2012. The respondent No.1 shall verify such service before handing over the ornaments to the petitioner.

7. We clarify that this order covers only Stridhan of the petitioner and no other property of the respondent No.2 or anyone else.

8. The petition stands disposed of accordingly.

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